The Risk of Party Incapacity During Mediation

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Written By: Todd V. McMurtry

Most lawsuits today are settled through mediation.  For this reason, a lawyer’s skill at managing the mediation process is more critical than ever.  So, a lawyer has to be prepared for the unexpected.  Take for example, a client that has become incapacitated.  Time and circumstance may cause a client who started the case in full possession of her mental faculties, to later suffer diminished capacity to the point of incapacity.  This change imposes additional duties on the lawyer

Common examples of diminished capacity are (1) a spouse suffering debilitating depression as the result of a divorce proceeding, and (2) an elderly client who shows signs of dementia or foggy thinking.  The National Institute of Mental Health defines Major depression as “severe symptoms that interfere with your ability to work, sleep, study, eat, and enjoy life.”  These symptoms would certainly describe a client with diminished capacity.  Similarly, an elderly client may show signs of dementia or clouded thinking caused by Alzheimer’s, a recent surgery or new medication.  Any of these conditions could limit a client’s ability to engage in the mediation process. 

The ABA Model Rules of Professional Conduct, Rule § 1.14 governs this situation.  Subsection (a) states, “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  This rule favors that the lawyer do all she can to work with a client under these adverse circumstances, but it also provides further guidance if the lawyer believes this effort has become untenable.

Subsection (b) states, “When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”  By this rule, the “risk of substantial . . . harm” is the trigger for the lawyer to act. 

Either of these scenarios could befall an attorney without notice at mediation.  If faced by a scenario where counsel believes her client may be at risk of substantial harm, such as entering into a damaging mediation agreement, due to incapacity, and where counsel cannot adequately act in the client’s best interest, the best decision is to adjourn the mediation and immediately consult with individuals that have the ability to protect your client from substantial harm.  

Todd V. McMurtry is a Member at Hemmer DeFrank Wessels, PLLC.  He is a commercial trial attorney and Harvard trained mediator.  Todd has been married to his wife, Maria C. Garriga, for 28 years.  They have three adult children. 

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